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Plaintiff’s Counsel Must be Given the Chance to Cross-Examine Defendant’s Expert Witness

parking lotWhen a plaintiff is injured due to the fault of someone else, that plaintiff can typically recover damages for his or her injuries from the responsible party under the theory of negligence. Negligence is the failure to take proper care in doing something. Put another way, negligence occurs when the defendant breaches the duty of care owed to the plaintiff and that breach causes direct harm to the plaintiff. The burden is on the plaintiff to show that his or her injuries resulted from the defendant’s conduct. In Poland v. Zaccheo, a Florida District Court of Appeals addressed the issue of giving all parties a sufficient opportunity to cross-examine expert witnesses.

The facts of the case are as follows. The plaintiff was injured in a rear-end collision. The plaintiff sustained a serious injury and eventually had to have surgery on her lower back. The plaintiff then filed a negligence lawsuit against the defendant. The defendant called a medical expert who testified that the majority of the plaintiff’s injuries were “attributable to preexistent disc bulges and degeneration associated with her morbid obesity.” The expert’s ultimate opinion was that the accident did not cause any permanent injury to the plaintiff. The plaintiff’s counsel was not allowed to question the defense’s expert regarding the cause of the plaintiff’s injuries.

Florida is a comparative negligence state, which means that the amount of compensation a plaintiff is entitled to is reduced by the percentage of his or her fault in the accident. Here, the jury found the defendant to be 90 percent negligent and the plaintiff 10 percent negligent. The plaintiff was awarded medical expenses and lost earnings but not any pain and suffering or future damages of any sort. The jury concluded, based on the expert’s testimony, that the plaintiff did not sustain a permanent injury due to the accident.

The appellate court reversed the lower court’s decision due to the limitations placed on the plaintiff in regards to cross-examination of the defense’s expert witness. Specifically, the court found that the trial judge had incorrectly limited cross-examination of the defense expert when it came to the question of the direct cause of plaintiff’s injuries. Since the plaintiff was not given an opportunity to refute the idea that her injuries did not result from the car accident, the defense’s “theory was left unchallenged” and could have led to the jury only awarding the plaintiff a portion of the total damages that she sought. In sum, the court concluded that the plaintiff’s attorney should have been afforded the chance to fully explore the expert’s opinion regarding the causation of the plaintiff’s injuries.

Cross-examination can be an important tool, which a personal injury lawyer can use to help an injured client. If you or someone close to you has been injured due to the negligence of another, having solid legal representation can make all the difference in your case. Robert Dixon is a highly skilled Miami personal injury lawyer who can help you understand your legal rights and options. We proudly represent clients across South Florida. To learn more, contact us online or call us today at 1-877-499-HURT (4878) for a free, confidential consultation.

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Plaintiffs in Negligence Cases Must Establish the Duty of Care – Down v. U.S. Army Corps of Engineers,  South Florida Injury Lawyer Blawg, August 5, 2014

Social Media and Your Personal Injury Case – Root v. Balfour Beatty Construction, South Florida Injury Lawyer Blawg, July 21, 2014